Bankruptcy - Summons for examination

Section 81 of the Bankruptcy Act allows the court or a Registrar, on the application of a creditor with a provable debt, the trustee or the Official Receiver, to summon a bankrupt, or an examinable person in relation to the bankrupt, to be examined on oath about the bankrupt and their examinable affairs, and to produce books. In family law cases where the court has jurisdiction in bankruptcy, Divisions 6.2 and 6.3 of the Division 2 Bankruptcy Rules apply through FLR r 1.22, with modifications in FLR Table 1.2. This form is the summons the Registry Manager signs. Its introductory note also mentions section 50 of the Act (examinations before a sequestration order), but its operative words summon the person under section 81.

When you need it

• You are a creditor, the trustee or the Official Receiver and want the bankrupt or an examinable person examined about the bankrupt's affairs in a family law case with bankruptcy jurisdiction.
• You need the person to bring specific books or records to the examination.
• You are filing the draft summons with the court's Bankruptcy - Application for summons to examine relevant person or examinable person.

1. 1

   Court and hearing details

   Tick the Division and insert the file number, bankrupt estate name and, once fixed, the court date and time for the examination.

2. 2

   Filed on behalf of

   Give the applicant's full name and tick Trustee or Other.

3. 3

   Important notice

   Insert the full name and address of the person summoned and the full name of the bankrupt. The pre-printed notice explains the duty to attend, to bring the books in the schedule, and the warrant that may follow non-attendance.

4. 4

   Part A - the person seeking the summons

   Give their name, address for service, phone and email, and their capacity under s 81(1), such as creditor or trustee.

5. 5

   Schedule to summons

   Number and describe each book or document to be produced. Rules 6.08(3) and 6.14(3) require the summons to identify the books.

• Apply with the court's application for summons form, a draft of each summons and an affidavit (rr 6.06(2), 6.12(2)). The affidavit states your capacity, the facts showing the person is an examinable person (if not the bankrupt) and the books sought, with any inquiries made and refusals (rr 6.06(3), 6.12(3)).
• The application may be heard in the absence of a party and in chambers (rr 6.07, 6.13, as modified by FLR Table 1.2).
• Serve the signed summons by personal service at least 8 days before the examination, and give written notice of the date, time and place to each known creditor (rr 6.09, 6.15, as modified).
• Pay an examinable person conduct money and reasonable expenses a reasonable time before they attend (r 6.17).

• List the books precisely. A vague schedule invites an application to discharge the summons.
• The form warns that a warrant will not issue against a person who is not the bankrupt if they were not given a reasonable amount for expenses.